New Opportunity for Same-sex Spouses to Apply for Federal Survivor Benefits

Same-sex spouses who are eligible or seeking eligibility for survivor benefits received good news on Wednesday, when the Office of Personnel Management (OPM) announced that it will waive certain requirements to access those benefits. 

OPM posted a new notice, which details how widows or widowers that meet certain criteria can apply for federal survivor benefits that they were ineligible for, or previously denied. 

Specifically, the notice addressed the requirement under the Federal Employees Retirement System (FERS), and the Civil Service Retirement System (CSRS) that a widow or widower of a federal employee or retiree must be married for at least nine months prior to the employee’s or retiree’s death in order to receive benefits. 

This nine-month period of marriage requirement will be waived in some cases, and OPM will allow same-sex spouses who are widowed to apply or resubmit an application to qualify for federal survivor benefits. 

Part of the reasoning behind this update is due to the murkiness of different states not recognizing same-sex marriage and its long history in the court, from the Defense of Marriage Act (DOMA) to Supreme Court cases such as United States v. Windsor and United States v. Obergefell. Certain people were technically qualified for federal survivor benefits, yet were not recognized as such. 

Going forward from now on, “OPM will deem the nine-month marriage requirement satisfied, notwithstanding the actual duration of the marriage, to provide affected applicants with benefits they could have obtained had they been permitted to marry earlier in their states of residence,” according to the notice.  

There are still a handful of requirements for those seeking retroactive benefits.  

Namely, applicants must prove that they were in a same-sex marriage with a deceased employee or annuitant, that would technically qualify them to receive federal survivor benefits save for the nine-month marriage stipulation.  

Additionally, OPM has stated that the proof of marriage must be before June 26th, 2013, (or within one year of that) the date the Supreme Court issued the Windsor decision. 

Another opportunity for eligibility is granted to couples who lived in a state that prohibited same-sex marriage. So, applicants who can show proof of marriage before the date of the Obergefell decision, June 26th, 2015 (or within one year of that) are also qualified for federal survivor benefits. 

Perhaps most importantly, OPM will offer another opportunity to submit documentation from affected widows or widowers who couldn’t previously show a retiree had elected a survivor annuity benefit on the applicant’s behalf within the required amount of two years of marriage. 

All individuals that are interested in federal survivor benefits may submit their evidence to OPM “showing that the annuitant intended to elect a survivor annuity for the applicant, and that but for the provisions under DOMA and/or state laws prohibiting same-sex marriage, the annuitant would have timely elected a survivor annuity on the applicant’s behalf,” according to the notice. “OPM will consider any documentary evidence for this purpose, either in its own files or submitted by the applicant, that shows that the annuitant attempted to elect a survivor annuity for the applicant through correspondence with OPM.” 

The exact location for federal employees and their spouses to check qualifications and also resubmit an application for federal survivor benefits can be found on OPM’s website. 


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